The Infrastructure for Avoiding Civil litigation: Comparing Cultures of Legal Behavior in The Netherlands and West Germany
Erhard Blankenburg
At first sight, the vastly different litigation frequencies in West Germany and The Netherlands present a riddle, as bodi countries have a legal system tradition in common and their baseline of potentially litigious conflicts is very much alike. This study tries to find an explanation by disaggregating various kinds of civil procedures. The distinguishing variables are found in the presence or absence of institutions filtering disputes at the pretrial stage. While in The Netherlands plaintiffs are offered a bigger set of alternatives for dispute resolution, the German court system, being very cost efficient, attracts masses of petty claims. Thus, it is unnecessary to look for atritudinal differences or even different "litigation mentalities" in the neighboring cultures. The institutional infrastructure is sufficient to explain why it is rational for Germans to use the courts and for the Dutch to avoid them.
I,n the American debate about litigation rates, litigiousness is seen as the result of rights consciousness and attitudes toward claiming. Thus, Americans view their own legal culture as adversarial, leading to high litigation rates, while viewing that of others as more relationship-oriented and thus less litigious. I present here the results of a study that challenges the premise that differences in litigation rates result from differences in attitudinal cultures. The research examines the litigation rates in The Netherlands and Germany. These two countries are much alike in social and economic terms; nor is there any reason to assume major differences in attitudinal cultures. Among civil law countries, their legal traditions are considered closely akin. When actual litigation behaviors are compared, however, there is a clear difference between the two, West Germany ranking very high in terms of frequency of litigation, The Netherlands ranking at the other end with the lowest litigation frequencies on the European continent. The puzzle is increased by the fact that The Netherlands developed the most elaborate legal aid system on the European continent. Contrary to plausible allegations that this would open
Address correspondence to Erhard Blankenburg, Faculteit der Rechtsgeleerdheid, Vrije Universiteit, De Boelelaan 1105, 1081 HV Amsterdam, The Netherlands.
Law & Society Review, Volume 28, Number 4 (1994)
© 1994 by The Law and Society Association. All rights reserved.
1
the gates to more actions in court, legal aid has eased access tc law by facilitating the handling of complaints in pre-court institu-tions. The research described here explores the reasons for the extreme differences in litigation rates notwithstanding the similarities between the two countries.
The social similarities together with the commonalities of the Dutch and German legal systems provide an ideal setup for a sociolegal comparison. The comparison undertaken here and described below shows that the differences found in the litigation rates cannot be explained in terms of the codified law or purely in terms of the mentality of legal actors. Instead, to explain the differences, it is necessary to look at the totality of the interrelationships among institutional factors which I call "legal culture." Many unique institutional developments have created an infrastructure for avoiding litigation in The Netherlands. In particular, potential repeat players use alternative ways of pursuing their rights rather than resorting to courts. The German tradition, on the other hand, tends to draw conflicts into the courts by discouraging alternative legal services and optimizing the efficiency of their courts.
Defining Cultures of Legal Behavior Comparatively
If we were to compare legal systems by looking at their formal characteristics alone, as is the practice of the long research tradition in comparative law, we might conclude that the "legal cultures" of The Netherlands and the Federal Republic of Germany are nearly identical.
The legal histories of The Netherlands and of West Germany have much in common. In the 19th century, the codifications of German and Roman Dutch laws were inspired by the French Code Civile after having undergone judicial and administrative reforms during and immediately following the Napoleonic occupation. The French influence in both cultures superseded a practice of rather decentralized local legal cultures. These changes established many commonalities among the northern German states and the Low Countries that Dutch legal scholars viewed as being "traditional law," not a response to French codifications. Transfers continued throughout the period of national codifications that came to The Netherlands somewhat earlier than to the German Reich. But cultural and legal commonalities were strong enough for Dutch legal scholars to continue orienting themselves to German scholarship as far as dogmatic refinements are concerned. Many Dutch judicial institutions are a composite of the French and the German traditions: all have a two-tier jurisdiction of civil courts of first instance. They provide the civil litigant with two courts of first instance, the local courts handling small claims up to a set amount in controversy as well as all matters oflandlord and tenant law and, in Germany, of family matters; district courts handle matters with higher value at stake and, in The Netherlands, all family matters. Appeals from each of the two first instance courts decide cases de novo, and the uniformity of decisions on legal issues is guarded by a high court of appeals treating cases exclusively on their legal merits (Hoge Raad in The Netherlands and Bundesgerichtshof in Germany).
Any similarities between the two legal systems, however, hold up only if we compare the laws in the books. Dutch scholars and legislators have always looked to the legal doctrines of the bigger neighboring countries before drafting their statutes. However, the legal practitioners in and out of courts have not. Even with very similar legal systems on the books, Dutch practitioners have developed amazingly different legal cultures in action. Apparently the gap between doctrine and practice is so great that doctrinal comparativists who have studied both systems in detail have overlooked most of the differences that are unveiled by looking at indicators of litigation frequency.
Substantive law, even procedural codes, might be alike from one country to the next, but they are bad predictors of how the law is employed in practice. Comparisons between measures of actual use of the courts lead us to the view that it is important to compare not only the formal legal systems but also to extend our view to what I call "cultures of legal behavior." This terminology deviates from what many law and society scholars have agreed on. They define "legal culture" as comprising "attitudes, beliefs and values with respect to law." It has been a useful definition as long as studies were concerned with popular as well as professional ways of approaching the legal system; normative expectations, trust in legal institutions, and attitudes toward using (or avoiding) them certainly shape the practice of law. Often such an underlying "belief culture" will be taken as a source of law, and regularly it will shape the institutions that make it work (or just prevent it from working) (Savigny 1840-49). When legal systems are compared, however, this definition may carry a misleading connotation. Commonly it is assumed that legal rules are rooted in social norms and that the legal system expresses the notions that a dominant group in society has about what is "just." Unfortunately, however, the reality of such an assumption is hardly ever tested. It would take a very sophisticated combination of qualitative interviews and survey technique to do so in a meaningful way. Legal scholars and judges have therefore developed a practice of making assumptions about what the general public might consider to be "true justice"; by that venerated method not only do they project their own "sense of justice" as being the general one, they also legitimate a highly sophisticated moral dogmatic as representing a public belief. Thus, even though the term is already "occupied" in various ways, "legal culture" is usedhere for polemic reasons: many authors assume that national differences not to be found in doctrine must be attributable to "folk mentalities." Attitudes alone, however, do not explain the data we found but they do explain their interrelationship, with law, institutions, and behavior patterns.
We apply the term culture to the set of all interrelationships occurring at three levels: (1) the level of substantive law and procedural codes, (2) the level of institutions such as the courts and the legal profession, and (3) the level of legal behavior and attitudes toward the law. Each level might form a complex pattern by itself, but only a comparison of the relationships between all of them can lead to a comparison of legal cultures. It should be evident that comparing them is a much more ambitious undertaking than comparing legal systems, which focuses mainly on understanding the differences of law as it is in the books. In looking at litigation frequencies, we try to approach "cultures of law" from a different angle than that of the comparativists. By gathering indicators on litigation, courts, and lawyers, we try to discover different characteristics of legal action.
Indicator Comparisons
Measuring the interrelationships between the three levels remains crude, however, because for comparisons between countries we are restricted to empirical indicators available simultaneously in all the countries I want to compare. Thus, the research is restricted to such indicators as numbers and types of legal personnel (e.g., lawyers and judges) and litigation frequencies.1
Only a few law and society studies2 have so far ventured to measure litigation differences between countries, and fewer still have attempted to explain them in relation to other empirical indicators.
Comparing indicators of legal activity in The Netherlands and Northrhine-Westphalia presents a challenge; in Northrhine-Westphaiia at the end of 1984, there were 12,500 lawyers admitted to the bar, while in The Netherlands there were only 4,800. In Northrhine-Westphalia about 4,700 full-time judges were employed and in The Netherlands only 762. Computed as rates relative to population size, this means that there were 73 attorneys and 28 judges for every 100,000 of the population in West Germany compared to only 33 attorneys and a mere 5 judges in The Netherlands (Blankenburg 8c Verwoerd 1988; Blankenburg 1985) (see Table 1).
The differences in sizes of the legal professions correspond to those for litigation (Table 2). Whichever type of lawsuits we look at, there is a considerably lower level of litigation in The Netherlands than in West Germany. West German courts were invoked 25 times more often for summary procedures of debt enforcement and 2.5 times more often for civil actions than in The Netherlands.
For anyone who would like to use litigation frequencies as indicators for the degree of regulation that prevails in a society, our Dutch-German comparison must be a puzzle. The Netherlands are known for their elaborate welfare state, they developed detailed regulations on housing and town planning, they enacted statutory rules for tenants protection, labor protection, and consumer protection—in sum they are rightly considered as a highly regulated political, social, and economic system. As a rule, we would expect as a result a large profession of legally trained personnel and a high volume of formal litigation in both public law and private law. And indeed, within the Dutch legal community, the impression prevails that litigation is on an ever increasing growth trend. However, our data on the legal profession as well as on litigation show that among the European countries we can compare, The Netherlands still ranks lowest in the number of advocates, the judiciary, and the caseloads of civil courts. While the number of lawyers and the flood of litigation rise in all countries, they do so at distinct and long-term relative levels of litigation frequency.
1Both size of staff and litigation have increased considerably since Galanter's(1983) work and continue to increase in both countries. However, as growth rates aresimilar, the relative frequency differences remain.
2Compare, however, Fitzgerald (1982), who followed the entire funnel of "namingclaiming-blaming" for a number of areas of civil dispute in Australia compared with theUnited States. While he finds Australians to be significantly less litigious than U.S. Americans, much bigger differences would be found in comparisons with other countries(which might in socioeconomic respects be much like each other). A lead to fruitful
hypotheses has already been found in a comparison of rather crude indicators that Johnson et ai. (1977) assembled. Galanter (1983, 1992) undertook some brave attempts to
establish rank orders of legal indicators for several countries; however, his data for a
number of countries still contain misinterpretations. Unfortunately, rather than overcom
ing the obvious incomparabilities of institutions in various countries, such attempts have
raised more questions about the validity of indicators such as courts (Clark 1990), cases
(cf. Ietswaart 1990), and who makes up the legal profession (Berends 1992). While it is
evident that "lawyers" and "courts" have different functional boundary definitions from
one country to the next, there is no way, if we ever want to describe precisely how func
tions differ, other than to start from indicators of their activities. The comparison of legal
cultures that I propose tries to overcome incomparability by a multilayered concept of
"legal culture" while keeping socioeconomic factors constant as far as possible.
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Keeping the Baseline of Potentially Litigious Conflicts Constant
The riddle of litigation frequencies can be presented even more clearly by comparing The Netherlands with that part of Germany with which in social and economic terms it is most like. To keep social and economic factors constant and to make the comparison between the two cultures of legal behavior even more convincing, we compared The Netherlands and its neigh-
boring German state of Northrhine-Westphalia.3 They are similar in size: The Netherlands with 15 million population and a land area of 35,500 square kilometers almost matches that of Northrhine-Westphalia with 17 million inhabitants and 34,000 square kilometers. Both The Netherlands and the province of Northrhine-Westphalia are known for their highly industrial but
Table 1. Registered Attorneys and Judges per 100,000 Population, 1970-1990
Judges*1970 1980 1990 / Attorneys'1
1970 1980 1990
Netherlands:
No
Rate/100,000 pop.
West Germany
No.
Rate/100,000 pop. / 850
6.5
12,954
20 / 1,024
7,3
16,657
27 / 1,490
9,9
17,392
29 / 2,063
16
23:798
36 / 3.600
26
37,312
60 / 6,381
43
59, 446
94
Source: Statistics of the national departments of justice and bar associations 3The number of judges in The Netherlands includes the full-time equivalents of part-time judges. Functionally equivalent to German judges would partly be legally trained secretaries {griffiers) who assist professional judges in preparing their cases to a degree which in Germany would be considered professional work. As griffiers do not take responsibility for decisions, however, they are not included in our figure.
b The functional equivalents of how strict the lines of the profession are drawn differ somewhat: about one third of registered advocates in Germany hardly do any court work; in The Netherlands our estimate is about 10%. On the other hand, German advocates enjoy a monopoly for legal advice, while in The Netherlands a number of membership associations, legal cost insurance, and legal aid offices render legal services. In both countries attorneys account for only part of the legal profession; what in North America are called "lawyers" would here appropriately be translated as 'jurists," including law-trained employees and civil servants. Compare Berends 1992.
Table 2. Litigation Rates, Courts of First Instance, 1970-1990
The NetherlandsWest Germany
197019801990197019801990
Civil courts109,025146,645228,4801,206,7501,671,089 1,948,151
Rate/100,000 pop.7791,0471,5502,0102,770 3,120
Labor courtsaa(9,471)b201,166302,602 325,969
Rate/100,000 pop.63335503 520
Source: National judicial statistics, population statistics.
a No labor courts; cases in civil courts.
bThere are no special labor courts in The Netherlands; however, in dismissal cases there is a special procedure which since the late 1980s is first registered separately in the judicial statistics. Until that change, the volume of cases seemed too insignificant to register nationally.
at the same time decentralized metropolitan areas (the Randstad with Amsterdam, Rotterdam, and The Hague in The Netherlands and the Rhine-Ruhr area in Northrhine-Westphalia). Both have thinly populated agricultural regions around the metropolitan areas. Both regions have seen an influx of foreign workers in the last 20 years, The Netherlands from its former colonies as well as from the Mediterranean, the Ruhr area mainly from the Mediterranean. Economically the two are symbiotic. Rotterdam serves as the seaport for the heavy industry of the Ruhr area, and there are numerous ties of trade and multinational entrepre-neurship. Consequently, if the Ruhr industry experiences a recession (as has been the case in the recent past), unemployment figures in The Netherlands go up.
The social and economic similarities of the two regions make it easier to examine and eliminate one of the most plausible hypotheses explaining the differing patterns of litigation, namely, that there are more legal disputes in Germany than in The Netherlands. To test that hypothesis, we have expressed litigation as a rate—as a ratio of court cases to underlying disputes. The usual difficulty of comparing litigation rates and similar legal indicators between countries is that we do not know enough about the baselines of all conflicts that might potentially lead to invoking lawyers and courts. As we know, cases filed in court represent only a small fraction of all potential legal conflicts. Computing litigation rates by relating them to the size of population seems a very crude basis for comparison (taking only the adult population would be even more crude and for many types of cases no more adequate). The problems of obtaining sufficient statistical data for baseline comparisons renders most comparisons between legal behavior cultures of more distant countries unfeasible. The Netherlands, however, and the neighboring German state of Northrhine-Westphalia are so much alike in size, economy, social structure, and mentality of the population that in general we might assume that the baseline of conflicts that could give rise to litigation are about equal. Nevertheless, where we could obtain indicators for baseline comparisons, we did so. To evaluate the relative Iitigiousness of tort regulation in a legal behavior culture, we took data on serious traffic accidents and other types of accidents. To evaluate the Iitigiousness in the area of employment protection, we sought the baseline of all employment dismissals. To assess the level of debt enforcement, we looked for data on numbers of sales or service contracts in which credit is extended.